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A New Jersey state judge, James Hurley, has made international news with his recent decision to shut down three websites dedicated to the debate on the H1-B visa situation in America. H1-B is a visa that allows companies in America to import workers from other countries to fill positions that cannot be filled by American workers. These jobs usually require a specialized skill, but the categories have become so all encompassing that to list them here would be impractical.

Many of the positions filled are in the technology industry, and increasingly the health industry, but all are normally considered higher paid positions. Critics of the program claim H-1B visas are used to bring in foreign workers and artificially keep wages lower. Claims of fraud were confirmed with a government report in 2008 that showed a 20 percent violation rate amongst employers exploiting the H-1B visa program.

The debate on the pros and cons of the H1-B visa program is ongoing in Congress as it decides whether to expand the program to allow for an additional 300,000 work visas. While part of a comprehensive immigration reform bill that would provide additional bureaucracy to assure compliance, congressional representatives are concerned with voter perception of allowing more workers into a country while unemployment steadily hovers at 10%. The alleged H1-B abuses by Apex Technology are aggravated by their promotion of off-shore outsourcing in which they promise ” …IT staff at a fraction of the cost of a US employee”.

The court decision by New Jersey’s James Hurley focused on Apex Technology which relies heavily on the H1-B program to import workers for placement in some of America’s largest corporations. Apex sued claiming the websites allowed defamatory posts to be published on: EndH1b.com and ItGrunt.com, and GuestWorkerFraud.com. Judge Hurley’s decision captured media attention because he chose to shut down entire websites rather than focus on the disputed claims. This has raised alarms of censorship and sets a precedent for websites such as Amazon.com, and numerous other websites hosting personal opinions, reviews and criticisms to be shut down. (one site remains active)

The action has labor rights activists, free speech activists, and even some beneficiaries of the H1-B visa program united in voicing opposition to the court decision. Many foreign workers hope for the opportunity to live and work in the United States, but they can often be subject to abuse in their places of employment. In what are sometimes described as H1-B “sweatshops”, workers can be dismissed with no reason and forced to leave the United State immediately. This, along with lower wages, are some of the problems faced by H1-B workers.

Free speech activists view the forced shutting down of the entire websites as a direct threat to the First Amendment, and a particular threat to the growth of online discussion groups and political debate. Labor activists claim abuses in the H1-B program are under reported, and while not addressing the veracity of the particular claims against Apex, they consider this over-reaching court decision a boon for companies seeking to skirt the laws.

To read more about TunnelRat check out Deconstructing Tunnel Rat … click here.
A comment we received from Donna Conroy, Executive Director of Bright Future Jobs

This is the best description of this court case I have read yet. Great job.

One small point: the corporate h-1b program is actually for “jobs that Americans can fill.”
The DOL’s Strategic Plan, Fiscal Years 2006-2011 (pg. 35) states: “…H-1B workers may be hired even when a qualified U.S. worker wants the job, and a U.S. worker can be displaced from the job in favor of the foreign worker.”

Thanks to the courage of Senator Dick Durbin reform legislation, S.887, these programs will be used only for job openings that Americans can’t fill. All his provisions have been included in the CIR ASAP bill.

The culture of bypass and displacement within technology fields, both legal and social, have created an oversupply of experienced STEM professionals while our recent STEM grads are never recruited for the jobs we have paid so dearly to educate.

Who We Are: Brightfuturejobs.com is a grassroots lobbying campaign dedicated to counteracting claims that Americans can’t cut it in science and technology. We lobby to require employers to seek local talent for US job openings before recruiting abroad.

Donna Conroy
Executive Director
www.brightfuturejobs.com

7 thoughts on “New Jersey & Free Speech”

It is good to see that someone sees this case for what it is — an attempt to intimidate exploited H-1B workers and American I.T. pros. The original repost about Apex, which was protected under Section 230, talked about Apex’s use of illegal bonded contracts:

“Fraud,cheating,lies and legal agreement @ Apex Technology Group Inc http://www.apextgi.com This information is being mailed to you as a reply to your post regarding fraud @ Apex Technology Group Inc (http://www.apextgi.com/ ). Please find the employment agreement letter http://www.docstoc.com/docs/10702214/agreement , which I received after I started working for Apex at a client location. None of the terms were part of the initial agreement between me and Apex Technology Group Inc. I would like to take this oppurtunity to highlight several aspect”s of the 9 page legal agreement which might be important for you. For example: 30 day termination notice or forget your last paycheck when you quit, If you join a company (including any level between you and Apex) then pay $35000 or face a law suit, $9000 for legal,training and guest services when you quit. $35000 if you quit in between a contract…etc. The legalities of the agreement are convoluted,complex and can/will be used against you if you displease Apex technology Group Inc. So once you sign that document you are at the mercy of the employer and much worse than a bonded labour in India. Apart from above, employees don”t receive their salary at the end of the month. It is usually received @ a random date in the following month, provided you are lucky. Else you would have to chase HR/Accounting to get your pay check. This process helps Apex technology group inc to hold back pay incase you choose to accept employment at another location. The most important aspect of your transaction”s with Apex Technology Group Inc is that they tell you one thing before you transfer your H1B to their consulting firm and then later do not stick to what they say(aka lies & cheating). In other words once you file/transfer your H1B to them you more or less become their slave and you will get entangled in thier web of lies and legal documents. They run the company, they are very unprofessional and treat employees…”

Apex not only wanted this post removed from my site, but wanted me to help track down their “culprit”:

You people need to wake up to what the law says. ALL foreign workers who negatively impact the wages or working conditions of American workers are INADMISSIBLE ALIENS AND SHOULD BE DEPORTED IMMEDIATELY.

(i) In general, any alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is inadmissible, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that—

(I) there are not sufficient workers who are able, willing, qualified
(or equally qualified in the case of an alien described in clause (ii)) and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and

(II) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed.
(ii) Certain aliens subject to special rule For purposes of clause (i)

(I), an alien described in this clause is an alien who—
(I) is a member of the teaching profession, or
(II) has exceptional ability in the sciences or the arts.

I’m an IHHS graduate with engineering and graduate degrees who hasn’t been able to find work due to outsourcing and visa-seekers. The President’s Science, Technology, Engineering and Math (STEM) stimulus bill will be for naught if graduates can’t get work.

Is the below free speech in the united states? This was all spewed out by Tunnel Rat and possibly why the judge ordered a complete shut down

(1) “if some one really wants to “out” me, they can then deal with the repercussions of my planned killing spree, Since I will be effectively blacklisted in IT and my family will be in danger from the legions of rabid slumdogs that I have offended, I WILL HAVE TO START KILLING INDIANS. I will begin with Desi dipsh*** that live down the street and so on..”

Why is it called terrorism and not free speech if you replace Indians with our own fellow citizens or jews? Why double standards? So Do you want to wait until the lunatic unleashes? Did not we already have an episode from Major Hasan who was ignored by the media?

(2) “Now that the slumdogs have taken over Google, I can no longer trust them to protect my anonymity… That is why I am protecting myself and my family by stockpiling weapons and ammo… My greatest hope is that some techie goes crazy and acts out violently against his slumdog replacement and the collaborators that hired the feral jackal. That techie in Pittsburgh was way off the mark by going after women at a gym. If he was going to kill himself anyway, he should of stopped off at the nearby law offices of Cohen & Grigsby.”

(3) Here’s a deal, SLUMDOGS. Get rid of Vineet Nayar, and I will stop blogging. Here’s a picture, so you can identify the FAT F***… Go ahead, eliminate that f*****. I promise I WILL STOP BLOGGING… The ball is in your court.

If we have come so far and elected an african american our president and removed the N word from the lexicon, why are espousing and raving some one who drops the S bomb in every sentence he uses? So Do you want another race to face the wrath of such words and indignation?

(4) Kurt at EFF responsed and this was this comment : “I have not read the sites, since they were offline before this matter came to our attention”.

EFF has lost all its credibility and so did oakland journal for blindly following it.

Thanks for thoughtful comment. But just to clarify The Journal also publishedDeconstructing TunnleRatwhich is the most researched article concerning this person available on the web. The issues your comments concern themselves with were addressed in that article.

All of the postings that you have quoted are still protected speech. They are all carefully crafted to skirt just under the line, so they do not meet all of the elements of a terroristic threat. Unless speech presents a clear and present danger of harm, it is protected from injunction. Also, the only allegations in the lawsuit were libel and copyright infringement, the latter of which a state lacks subject matter jurisdiction to hear, much less rule upon.

I am one of the John Does attacked by Plaintiffs Apex Technology Group in this case.

In short, I set up a web site whose purpose is to share information about the rampant abuse in the H-1B program and its use to displace U.S. workers. The EndH1B.com web site had features that allow people to post links to information posted on other web sites. Visitors to EndH1B.com used these features to share information and make people aware of information on H-1B visas posted to other web sites.

An anonymous person came to my site and posted information about the plaintiff’s allegedly illegal bonded contracts.

Plaintiffs demanded that I turn over information to help them track down this “culprit”.

I refused.

I got sued.

I never got served.

Plaintiffs are a criminal enterprise (they illegal sponsor H-1Bs and place them at 3rd party sites, in violation of USCIS rules). They even sued U.S. Attorney General Eric Holder and others, in a case that was dismissed.

I’ve gotten frequent death threats on my websites. I believe plaintiffs sued to uncover my identity and turn the information over to other parties that intend to do me harm. If you hear about me getting killed, please contact authorities about this message.

It only goes to show where there’s will there’s a way. Keep on trying. – There is always room at the top. Daniel Webster 1782-1852: on being advised against joining the overcrowded legal profession (attributed)